#374 Third Department Caselaw Round-Up for May 17, 2012, Part 2 of 2

The first case illustrates what occurs in an FCA Article 10 case when a non-final order is appealed and then the underlying case is resolved. It also shows the importance of appealing dispositive orders.

The second case looks like an appeal that should have resulted in the filing of an Anders Brief.

DSS filed a neglect petition against the child's mother and her boyfriend. The petition alleged that while in the mother's care, the child had sustained various unexplained injuries. Given the claims made against her, the mother, logically enough, then moved for an order directing that the child be made available for a pediatric examination to ascertain whether or not the child "suffers from a medical condition that causes [the child] to bruise easily, as the mother alleged".

Oddly, DSS, the father, and the attorney for the child all opposed the motion. I consider this to be "odd" insofar as once the child is examined, if it is then found that she does not have this alleged condition, then it could only make DSS' case against the mother stronger. Besides, for DSS to have brought the petition in good faith in the first place, shouldn't DSS, of all entities, have had the child examined by a pediatrician to rule out or rule in injuries to start with!? So, why oppose it unless there's something else going on here? Hmmm. Hey, a little cynical paranoia is a very healthy thing in this line of work!

The court denied the motion by way of a written order, "finding that the mother's submissions were facially insufficient to support the requested relief". I find this to be even stranger than the uniform opposition to the motion. After all, if the mother holds this good faith belief, it should not have been difficult to draft a cogent motion in this regard. Hmmm. So, what the hell is going on here?

Well, the mother had to have these same questions because she appealed the order denying her motion.

During the pendency of this appeal, the court held a hearing and issued an order of fact-finding and disposition, which found that the mother had neglected her child. The child was then placed in the custody of her father with the mother receiving supervised visitation. Orders of protection were also issued by the court.

The mother wisely appealed each of these final orders. However, they were not yet before the Third Department when this appeal came to them. Otherwise, the Third Department likely would have consolidated all of the appeals and rendered a single decision.

The Third Department therefore deemed the mother's appeal of the order denying the discovery motion as being moot since the neglect proceeding had now concluded and the matter concerning the child's injuries (discovery) had been disposed of by the proceeding. However, the matter need not end here, as the Third Department makes very clear: "the resulting discovery order here is only reviewable in conjunction with the appeal of the final order, wherein the record as a whole may be evaluated to determine whether the [motion] was properly denied and, if not, the appropriate remedy".

Well, I guess we will just have to wait until when the other appeals reach the Third Department to see how things turned out. Don't get your hopes up.

The defendant was pulled over by a police officer, following a domestic dispute, and his 8-year old daughter was a passenger in the vehicle. For some reason, the defendant "accelerated the vehicle causing the police officer to be dragged and to sustain serious injuries". The defendant was arrested for the crime of assault 2nd, to which he later pled guilty. He agreed to a plea bargain that allowed for a sentence of between to 4 to 6 years in prison with post-release supervision of between 1 ½ and 3 years. The defendant was ultimately sentenced to 5 years in prison with 3 years of post-release supervision - well within the range anticipated by the plea bargain.

The defendant appealed. And, really, it makes no sense to appeal this sentence.

Apparently, the sole argument on appeal was that the defendant's sentence was harsh and excessive. Um, no. Besides, "the injuries sustained by the officer were significant, precluding him from working for many months and having permanent effects".